11 F. 440 -

11 F1d 440

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Case Text

4:40

FEDERAL REPORTER.

1' he other questions which are presented upon the motion are not sufficiently serious to deserve extended comment. The instructions to the jury must be considered in their integrity, and not in isolated parts, and so considered present the law of the case fairly and correctly. The evidence amply justified the jury in the conclusion that the defendant had not made such an examination of the boiler as prudence required, preparatory to its employment for the season of 1878, and which, if made, would have revealed the defect. The verdict undoubtedly awarded the plaintiff liberal damages for the injuries he sustained, but it is very difficult to measure the comnensation which a party should receive for such acute suffering as the plaintiff experienced. Certainly the verdict is not so obviously extravagant as to indicate pl'ejudice or partiality. The motion for a new trial is denied.

THE JOSEPHINE SPANGLER.

(Uircuit Court, 8. D. Mi,si,8ippi.)

LIENS ON VESSELll-PRIORITY-STARE DEICISIS.

Under the doctrine of stare decisis" the lien of a mortgage on a vessel dUly recorded according to section 4192, Rev. St., is inferior 10 all strictly maritime liens, but is superior to any subsequent lien for supplies furnished in the home port given by state legislation." The IJe Smet, 10 FED. REp. 483, followed.

In Admiralty. On appeal. This is an appeal from the decision rendered in this case in the district court in January, 1881. The decision appealed from will be found in 9 FED. REP. 773. A. N. Lea, for mortgage creditors. Pitman et Smith, for lienholders. PARDEE, C. J. The steam-boat Josephine Spangler having been libelled, condemned, and sold, various parties intervened, claiming the right to be paid from the proceeds. The district court rendered an elaborate decree, marshalling the various liens and claims, and from that decree George H. Quackenmeyer, the Yazoo City Oil Works, and Charles J. Edwards, Adam Fox, and W. L. Burton, intervening libellants, have appealed. The claim of Quackenmeyer, which was rejected by the district judge, is for money advanced to the owners which it is claimed was used in repairs on the boat, and was to be

THE JOSEPHINE SPANGLER.

441

secured by a deed of trust under an agreement renting to said QuackcHmeyer for one year, with certain privileges of board and passage, the bar of the boat. As the boat was sold before the year expired, by SOllie eight months, he claims a proportional amount of the money advanced, and that the same be declared a lien on the proceeds of the boat. The district judge found that the money was advanced to the owners to enable them to pay part of the purchase money. No deed of trust was given. and of course none was recorded, under section 41D2, Rev. St. lt is difficult to see how any arguments even can be made in support of Qnackenmeyer's pretensions. He is not a mortgagee, a shipper, or passenger, nor a furnisher of supplies. He may be a charterer without freight, or a limited owner, but it is clear that he has no lien, maritime or domestic. The claim of the Yazoo Oil Company is for moneys advanced to the officeril of the boat to buy cotton seed to be shipped to the oil company, and upon which the boat was to earn freight. No seed was bought, but the money advanced was used to pay the expenses of the boat. As no seed was bought there was no freight; without the freight there was no lien. The difference noted by counsel between this case and the Hardy Case, 1 Dill. 460, is exactly the thing which is fatal to his claim for a lien. The contract between the parties may be a maritime contract, wholly relating to maritime services, but no lien results on account of freight until it has been offered and accepted... If the money advanced by the oil company was used to pay the expenses of the boat, or for repairs, there may be a lien under the laws of Mississippi; and that there is such a lien may be taken for granted, so far as the decree now to be rendered is concerned. The otber claimants appealing-Edwards, Fox, and Burton-held liens under the laws of Mississippi; in other words, liens for supplies and materials in the home port. The question presented by them is whether such liens are not entitled to priority over a prior mortgage duly recorded under section 41D2, Rev. St. I have held this case some time to examine this question in the case of The De Smet, 10 FED. REP. 483, lately argued and decided in this circuit for the eastern district of Louisiana. In that case the identical point was raised, and after the most careful examination of the authorities and the reason of the rule , I decided that for some years in this circuit the rule "that mortgages of ships duly recorded under article 4192, Rev. St., were entitled to priority over subsequent domestic liens under the state law," had pre-

449

FEDERAL REPORTER.

vailed; that this rule had become the law of this circuit; and that the doctrine of stare decisis must be followed. The case must go against these appellants on this ground.
See S. C. 9 FED. REP. 773.

The absence of any immediate necessity for the service rendered, even of a salvage character, qualifies the power of the carrier; and where, in addition, the owner of the cargo, though accessible, was not communicated with, and there was an evident attempt, by concert between libellant and the master, to throw the whole expense on the cargo, the right to enforce the demand is forfeited as respects the cargo.

In Admiralty. E. D. McOarthy, for libellant. J. A. Bush, for claimant. C. J. Assuming that the service in this case was a salvage service as respects the cargo, but not deciding that it was, there necessity for the service without communicating with was no the owner ofthe cargo, who was immediately accessible. The absence of such necessity must qualify the power of the carrier, as the power is founded solely on the necessity. The views stated by the district judge, in his opinion on this subject, are those sanctioned by principle and precedent. In view of the absence of immediate necessity, of the exaggeration of the claim by unduly increasing the time charged for, of the antedating of the written agreement, and of the evident attempt, by consent between the libellant and the to throw the whole expense on the cargo, the demand, even though of a salvage character, must be held to be one the right to enforce which has been forfeited, as respects the cargo. The libel is dismissed, with costs to the claimant in the district court, taxed at $37.50, and his cosis in this court, to be taxed·
· Reported by S. Nelson White, Esq., of the New York bar.